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Kiobel V. Royal Dutch Petroleum: Delineating The Bounds Of The Alien Tort Statute, Tara Mcgrath

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the upcoming Supreme Court case, Kiobel v. Royal Dutch Petroleum Co., in which the Court will address questions regarding the Alien Tort Statute and its applicability to foreign conduct and foreign litigants. The case will require the Court to reexamine the bounds of a long-ago established tort doctrine in light of more modern considerations and developments in international law.

Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger

West Virginia Law Review

No abstract provided.

Political Question Or Judicial Query: An Examination Of The Modern Doctrine And Its Inapplicability To Human Rights Mass Tort Litigation, Nancy S. Williams

Pepperdine Law Review

No abstract provided.

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky

Lee Kovarsky

Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.

Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet

Pepperdine Law Review

No abstract provided.

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

Rodger Citron

No abstract provided.

Court Reform And Breathing Space Under The Establishment Clause, Mark C. Rahdert

Chicago-Kent Law Review

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the …

Litigating Federal Health Care Legislation And The Interstices Of Procedure, Wendy Collins Perdue

University of Richmond Law Review

No abstract provided.

Congress's Power To Regulate The Federal Judiciary: What The First Congress And The First Federal Courts Can Teach Today's Congress And Courts , Paul Taylor

Pepperdine Law Review

No abstract provided.

A Tort Statute, With Aliens And Pirates, Eugene Kontorovich

Faculty Working Papers

The pirates of the Caribbean are back. Not in another fantastical film but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since they dealt with the legal issues raised by a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing piracy. This crime has emerged as the test case for evaluating the major controversies about the reach of the statute -- namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Shell, justices of all persuasions …

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

Scholarly Works

No abstract provided.

The Ghost That Slayed The Mandate, Kevin C. Walsh

Law Faculty Publications

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed …

A Crisis In Federal Habeas Law, Eve Brensike Primus

Reviews

Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …